United States Intervenes in Two Whistleblower Lawsuits Against United Health Group for Improper Medicare Payments; Trump Administration Tackling Medicare Fraud, Waste and Abuse

During an interview on this past Sunday, President Trump indicated that he does not plan to touch the concept of Medicare; however, he and his administration would be tough on Medicare fraud, waste, and abuse. The timing of this statement by President Trump is coincidental with the United States joining in on a False Claims Act (FCA) whistleblower lawsuit this week against the largest Medicare Advantage Plan (MAP) in the United States, United Health Group (UHG). The litigation is titled United States ex rel. Swoben v. Secure Horizons et al. and the Complaint can be found here.

The complaint alleges that UHG knowingly disregarded information about beneficiaries’ medical conditions, which increased the payments that UHG received from Medicare. More specifically, the assertion is that UHG funded chart reviews by a provider of services to UHG beneficiaries in California, to increase the risk adjustment payments received from the Medicare program for beneficiaries. The insurance company "knew that it was obligated to identify and delete the unsupported and invalid diagnosis codes. Nonetheless, UnitedHealth turned a blind eye and funded and encouraged one-sided chart reviews."

This action follows another recent intervention in a whistleblower lawsuit by the United States government in another FCA lawsuit against UHG, which also alleges that UHG defrauded the Medicare program, United States ex. rel. Poehling v. UnitedHealth Group, Inc. It is estimated that if successful, the risk adjustment scheme by UHG could have generated hundreds of millions of dollars, if not billions, in overpayments to health plans.

Acting Assistant Attorney General Chad A. Readler of the Justice Department’s Civil Division stated, “The intervention of the United States in this matter illustrates our commitment to ensure the integrity of the Medicare Part C program.” It is estimated that the United States government intervenes only in about 25% of whistleblower lawsuits filed.

Further, Acting U.S. Attorney Sandra R. Brown for the Central District of California noted that, “This action sends a warning that our office will continue to scrutinize and hold accountable Medicare Advantage insurers to safeguard the integrity of the Medicare program.”

Commentary: This is clearly a warning shot by the Feds regarding its intent to aggressively pursue Medicare fraud, waste and abuse. On the U.S. Department of Justice’s press release which discusses the matter, the DOJ states that False Claims Act is one of the most powerful tools for the U.S. government to combat healthcare fraud and that it encourages such actions.

Regarding Medicare Secondary Payer (MSP), the law was clearly enacted with the intent of eliminating Medicare overpayment and is within the purview of CMS’ plan to curb fraud, waste and abuse. Over time, the Centers for Medicare and Medicaid Services (CMS) has continued to increase its enforcement of the MSP through several steps, and we are just at the beginning:

Reporting: Through the passage of MMSEA Section 111 requirements, CMS has had visibility into settlements with Medicare beneficiaries since 2010 which has enhanced Medicare’s ability to recover conditional payments and coordinate benefits. What we have not seen, however, even though the MMSEA Section 111 laws have been in place since 2007 (10 years now), are the issuance of penalties against a Responsible Reporting Entity (RRE) for noncompliance. CMS issued an Advanced Notice of Proposed Rulemaking (ANPRM) in 2014 which sought to outline safe harbors for RREs against a possible up to $1000 per day/per claim penalty. The next step is for CMS to finalize this issue with a Notice of Proposed Rulemaking (NPRM), which is expected to be the next step coming along shortly.

ICD-10 Coding: Since the transition of ICD-9 to ICD-10 coding has began, CMS has been strongly warning RREs to accurately report ICD-9/10 codes to properly coordinate benefits. In other words, CMS intends to use the data to drive coordination of benefits and MSP compliance. 

MSAs: CMS has had in place a voluntary review process for Workers’ Compensation Medicare Set-Asides (WCMSAs) since 2001 to ensure that the burden is not shifted onto the Medicare program future payment. Now, we have seen clear steps being taken by CMS to put into place a program for review of Liability Medicare Set-Asides (LMSAs) and No-Fault MSAs (NFMSAs). This is expected to occur as early as July 1, 2018.

Conditional Payments: CMS has stepped up its recovery efforts with Non-Group Health Plan (NGHP) conditional payments through its addition of the Commercial Repayment Center (CRC). The CRC, since October 2015, has now been seeking recovery where a workers’ compensation or no-fault primary plan has reported Ongoing Responsibility for Medical (ORM).  Through the recovery in ORM situations, Medicare is not leaving dollars on the table.

Medicare Advantage Plan (MAP) Conditional Payments: As has been the subject of many of our recent blogs and webinars, MAPs are turning up the heat on NGHPs in nationwide litigation to establish that they have a private cause of action for double damages for failure to timely reimburse conditional payments made by the MAP. We have seen a cottage industry crop up, and the establishment of law firms, such as MSP Recovery LLC  to establish this right for MAPs. As MAPs continue to receive pressure from CMS to recover overpayments, and as CMS continues to turn the heat on MAPs themselves for fraud on the Medicare program themselves as we have seen with these UHG whistleblower lawsuits, we will only continue to see further steps to curb Medicare fraud, waste and abuse.

The political landscape and timing is now to ensure complete Medicare Secondary Payer compliance. 

About the Author

Heather Schwartz Sanderson, Esq., MSCC, CHPE, CLMP, CMSP

Heather is Chief Legal Officer for Franco Signor LLC, the nation's compliance authority for Medicare Secondary Payer (MSP) matters. She has lectured on MSP compliance to the workers' compensation and liability insurance communities at conferences, associations, and individual offices nationwide. She is a regularly published author on court decisions and legislative reforms involving Medicare Set-Asides, conditional payments, and Mandatory Insurer Reporting issues. Understanding that compliance with the Medicare Secondary Payer Act can be at times complex and frustrating for those that handle claims with Medicare beneficiaries, Heather's goal is to speak and write with the primary goal being simple and understandable solutions to compliance. 

Heather can be reached at Heather.Sanderson@francosignor.com
Franco Signor's Blog can be found at: http://www.francosignor.com/msp-blog/

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